A Pope as a “Manifest” or “Public” Heretic

QUESTION:In 2004 the SSPX Canadian publication “Communicantes” published “Sedevacantism,” a lengthy critique of that position by Fr. Dominique Boulet. One of his principal arguments against sedevacantism was that, whatever you may think about the post-Conciliar popes, they are not really “manifest,” “public,” or “notorious” heretics, as canon law understands those terms.

What’s your response to this? And how are these terms defined?

RESPONSE: The key theological principle behind sedevacantism is found in the treatises of pre-Vatican II canonists and theologians and may be summed up as follows: If a pope as a private individual embraces some heresy and then professes it to others openly in some fashion — theologians use various terms to characterize this heresy: “public,” “notorious,” “manifest,” or “openly divulged” — he puts himself outside the Church and automatically loses his office.

Father Boulet, like so many other anti-sedevacantist controversialists, makes two errors: (1) He confuses the sin of heresy with the crime of heresy, and (2) He confuses generic terms applied to heresy before the 1917 Code of Canon Law (manifest, notorious, public, etc.) with the more specific meanings these terms were given after the 1917 Code.

The principal flaw in Fr. Boulet’s argument — and one that runs through his lengthy article from beginning to end — is that he utterly confuses two aspects of heresy:

(1) Moral: Heresy as a sin (peccatum) against divine law.

(2) Canonical: Heresy as a crime (delictum) against canon law.

The moral/canonical distinction is easy to grasp by applying it to abortion, which likewise can be considered under the same two aspects:

(1) Moral: Sin against the 5th Commandment that results in the loss of sanctifying grace.

(2) Canonical: Crime against canon 2350.1 of the Code of Canon Law that results in automatic excommunication.

Fr. Boulet, like so many other anti-sedevacantist controversialists, seems to think it is the second aspect of heresy — heresy as a crime against canon law — that renders a public heretic incapable of becoming a true pope or that automatically strips him of his office if he falls into heresy after has already been elected to it.

Consequently, Fr. Boulet quotes at great length criteria from the Code of Canon Law that are used to determine when a crime is imputable, public, notorious, pertinacious, etc. Any “heresies” of the post-Conciliar popes, he maintains, do not meet these canonical standards, so (he concludes) there is nothing to the sedevacantist case.

But all this is barking up the wrong tree. It is not heresy in the second sense (crime against canon law), but heresy in the first sense (a sin against divine law) that prevents a public heretic from becoming or remaining pope. This is clear from the teaching of pre-Vatican II canonists like Coronata:

“III. Appointment to the office of the Primacy [i.e. papacy]. 1° What is required by divine law for this appointment: … Also required for validity is that the appointment be of a member of the Church. Heretics and apostates (at least public ones) are therefore excluded.”…

“2° Loss of office of the Roman Pontiff. This can occur in various ways: … c) Notorious heresy. …“If indeed such a situation would happen, he [the Roman Pontiff] would, by divine law, fall from office without any sentence, indeed, without even a declaratory one.” (Institutiones Iuris Canonici [Rome: Marietti 1950] 1:312, 316. My emphasis.)

Divine law removes the heretical pope. One need not therefore look to all the criteria laid down for crimes against canon law.

To attempt to do so in the case of a pope, moreover, is to commit a “category error” — to ascribe to something a property it could not possibly have. A pope, as Supreme Legislator, is above canon law, and therefore cannot commit a crime against it, so no evil act he commits can be properly called a “crime.” It can only be called a sin, because he is subject to the divine law alone.

Most anti-sedevacantist controversialists over the years have, like Fr. Boulet, made exactly the same error. Why? The answer lies in their false assumptions about the meaning of technical terms.

The long line of theologians and canonists over the centuries who examined the question of a heretical pope distinguished between two general types of papal heresy according to the “notice” or “publicity” it received.

(1) “Occult” (i.e., secret or hidden) heresy. (E.g., written in a diary, uttered in private to a few discreet people, etc.)

(2) A second type of heresy that is not occult. (E.g., published in an official document, proclaimed in a public discourse, etc.)

For the latter, the various theological and canonical treatises did not always use an identical term, but instead employed a variety of expressions to describe the papal heretic or his heresy: “public,” “notorious,” “manifest,” “openly divulged,” etc.

These were generic terms that did not have a uniform meaning in sources and authors before the 1917 Code, and were simply used in contradistinction to “occult.” (See F. Roberti, “De Delictis et Poenis,” schemata praelectionum [Rome: Lateran 1955] 80–1) Authors writing after the 1917 Code about the question of a heretical pope continued to use the same generic language to distinguish between occult and non-occult heresy.

Because of this, Fr. Boulet and many others like him have fallen into anachronism about the terminology. They mistake this generic language used by authors writing about papal heresy before the Code, and subsequently taken up even by authors after the Code, as an indication that all the minute criteria of the Code’s criminal legislation must be satisfied before a loss of papal office can kick in.

This, alas, is a fatal error, so none of their arguments on this point can be used against the sedevacantist case.